Crawfordsville Town & Country Home Center, Inc., Appellant-Defendant,
Odilon Elias Cordova, Jamie Busse, and Do It Best Corp, Appellees-Plaintiffs/Defendant.
FROM THE ALLEN SUPERIOR COURT THE HONORABLE DAVID J. AVERY,
JUDGE TRIAL COURT CAUSE NO. 02D09-1512-CT-543
ATTORNEYS FOR APPELLANT CAREN L. POLLACK ZACHARY J. STOCK
ATTORNEY FOR APPELLEES TIMOTHY F. DEVEREUX INDIANAPOLIS,
Crawfordsville Town & Country Home Center, Inc.
("Town & Country") appeals the trial
court's denial of its motion for summary judgment in
proceedings brought by Odilon Elias Cordova
("Cordova") and Jamie Busse ("Busse"). We
reverse and remand.
Town & Country raises two issues. We find the following
issue dispositive: Whether the trial court properly denied
Town & Country's motion for summary judgment based on
lack of duty.
The parties' designated evidence demonstrates that, in
August 2014, the owners of a Mexican restaurant in
Crawfordsville hired Rogelio Barcelata to paint the rear
exterior wall of the restaurant. Barcelata asked Cordova and
Rutelio Gonzales to assist and split the payment for the
work. To remove the old paint, the men decided to rent a
pressure washer and an aerial lift. Barcelata and
Cordova went to Town & Country, where Corey
Perigo, the rental department manager, assisted them.
Barcelata, Gonzales, and Cordova speak limited English.
Barcelata and Cordova testified in depositions that they
cannot read English. Perigo testified in a deposition that
Barcelata spoke fluent English and that he did not know if
the other men spoke English. Cordova is married to Busse, and
they communicate in English.
Perigo rented the equipment to Barcelata. According to
Perigo, he explained the operation of the aerial lift to
Barcelata. According to Cordova, however, Perigo explained
how to use the aerial lift to Cordova, who spoke more English
than Barcelata. Perigo also showed Cordova where the
operator's manual was located. The operator's manual
and the warning labels on the aerial lift are all written in
English. Cordova did not ask for the instructions or safety
information to be provided in Spanish. Perigo spent fifteen
to twenty minutes giving an operation and safety orientation.
Perigo conceded, however, most of that time was spent on
operation of the aerial lift, not safety. Perigo did not
review the operator's manual with Cordova or Barcelata.
The aerial lift had multiple warning labels with diagrams
placed on the aerial lift by the manufacturer that directed
users not to use the lift within ten feet of a high-voltage
line. See Figure 1 (Appellant's App. Vol. II p.
135); Figure 2 (Appellant's App. Vol. II p. 136). Perigo
testified in his deposition that he explained the
electrocution warning sticker and that he said "to stay
away from the power lines at least 10 feet."
Appellant's App. Vol. III p. 151. Barcelata, however,
testified that Perigo did not point out the warning labels.
The operator's manual further directed operators to avoid
power lines. See Figure 3 (Appellant's App. Vol.
II p. 239). The operator's manual provided:
"Inexperienced users should receive instruction by a
qualified instructor before attempting to operate or maintain
the aerial work platform." Appellant's App. Vol. II
p. 237. Perigo is not "certified" to "provide
training or instruction" on the aerial lift.
Appellant's App. Vol. III p. 151.
The men then took the aerial lift to the jobsite. After they
arrived at the jobsite, however, the men had problems
operating the aerial lift. Cordova called Perigo, who came to
the jobsite and corrected the problem. There is a dispute as
to whether the aerial lift was in the parking lot or in
position next to the building when Perigo arrived. Perigo
testified that, when he arrived, the equipment was parked in
the parking lot away from the restaurant. According to
Perigo, the men did not explain what they were doing with the
aerial lift, and they told Perigo that they needed a
"heavier duty pressure washer." Id. at
Cordova, however, stated that, when he and Barcelata arrived
at the site with the aerial lift, they immediately placed the
aerial lift next to the restaurant's back wall and
leveled it. Barcelata also testified that the aerial lift had
been placed "where we were going to work" and that
Cordova had leveled it before discovering that it would not
work; the men placed the aerial lift between the back wall of
the building and power lines that were a few feet away.
Id. At 159.
According to Cordova and Barcelata, the aerial lift was
already in position when Perigo arrived to fix it. Barcelata
testified that he assumed Perigo "would have said
something" if the aerial lift could not be operated in
its location when Perigo repaired the aerial lift and saw its
position. Id. at 167. Cordova testified that Perigo
saw their small pressure washer and told Cordova that it was
too small for the job. Perigo recommended that the men use a
more powerful pressure washer, and the men followed Perigo
back to Town & Country to rent a different pressure
Barcelata was aware that "nobody should get close to
electric cable[s]," but he admitted he thought they had
enough room to do the job without touching the power lines.
Id. at 161. Barcelata understood that they needed to
stay away from the power lines. Barcelata was not concerned
about using water near the power lines because they
"were spraying the wall, not the lines."
Appellant's App. Vol. II p. 81. Cordova testified that he
knew the power lines were "bad" and that they tried
to stay away from the lines. Appellant's App. Vol. III p.
178. Cordova also testified, ...